Britain’s post-Brexit trade dispute arrangements will have profound impacts on the natural products sector, writes Robert Verkerk.

It was just over 2 months ago that the EU’s chief negotiator said, “I can’t negotiate with myself”. Michel Barnier was of course referring to the British delay in getting stuck into the complex technical, judicial and financial issues associated with the Brexit negotiations.

This last weekend, David Davis, the UK Brexit secretary, challenged Barnier’s team for not moving ahead fast enough with the negotiations, a charge that was hotly denied.

This week’s debate over the reach of the European Court of Justice, triggered by the release of a UK government policy paper on Monday, may see the go-slow between the UK and EU negotiators unlocked.  But exactly how these negotiations will unfold is anyone’s guess. And just how they might be applied to UK natural products selling in the EU, or vice versa, is even more uncertain. This is particularly the case because views at high levels within the UK government are so varied, with some Cabinet ministers wanting a clean break (hard Brexit), others a very gradual departure from the EU (soft Brexit) – with a third category of ‘inbetweeners’ – this latter category being the camp of prime minister Theresa May and Brexit secretary David Davis among others.

It would be difficult to argue that views from the EU’s side haven’t generally been more consistent.

Natural products trade impacts 
Monday’s release by the UK government of the latest policy paper outlining ways in which the UK might handle its relationship with the European Court of Justice was the first of several reports to spell out the likely position of David Davis’ Brexit team.

In short, the UK wants to end the European Court of Justice’s jurisdiction in the UK once it exits the EU. At the same time, it wants to make sure that there is an arbiter over trade disputes that might arise. It’s proposed various models to make this work, including a joint committee or relying on the WTO. For EU member states, the European Court, more formally the Court of Justice of the European Union, one of over 10 institutions of the European Union, is the highest arbiter.

It seems something of a no-brainer that if the negotiation is successful and the UK successfully extracts itself from the EU, the ECJ’s jurisdiction will ultimately not apply. But there are complex issues over timing. When it comes to trade, are we talking about goods that were traded before or after the formal withdrawal date, planned for March 2019? The EU’s position is quite clear here, it envisages that UK products already lawfully sold on the EU single market before the withdrawal date should continue to be able to be sold in both the UK and EU markets. But the EU’s position comes with a  disclaimer: either party should have the capacity to prohibit or restrict trade of such products if the EU or UK was “justified” on “serious grounds of health or safety”.

To us, this issue of ‘perceived’ risk to public health will remain the biggest sticking point – and the biggest obstacle natural products will face. Time and time again, we’ve seen regulators or national courts misrepresenting the safety of products in order to ban or restrict their sale.

After Brexit, such problems are, we believe, as likely to originate in the UK or the EU. In fact, recent history of actions by national authorities would suggest that the UK authorities, in particular the UK medicines authority, the MHRA, is among the most restrictive in the UK when it comes to perceptions of risks from botanical food supplements.

So, while we and others observe and seek to influence the negotiations, we offer one suggestion: please do not imagine for one minute that a removal of the jurisdiction of the ECJ from the UK will equate to a highly liberal, US-style regime for natural products in the UK.

If David Davis’ team gets its way, the Supreme Court in the UK will become the final arbiter of decisions relevant to UK trade within the UK, in place of the ECJ. We think that’s entirely rational and a good thing.  But, unlike the ECJ, the Supreme Court will be a newbie to the issues surrounding the legal sale of natural health products and could easily be swayed by anti-natural health ‘experts’ linked either to the MHRA or the skeptic movement.

Whether we like it or not, and whether or not the UK government will care to admit it or not, if Theresa May’s government want to maximise certainty for UK businesses, the judges in the Supreme Court will need to keep more than a “half an eye” on past ECJ rulings. For the last two or so decades, a series of these rulings relating to natural products have been seminal to keeping products on both the EU and UK markets that national authorities have sought to have banned.

Let’s keep this firmly in mind as the negotiations proceed and be careful what we wish for.